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What one city is doing to fight secrecy surrounding dangerous goods transported by rail.

The city of Windsor is one of a handful of municipalities fighting secrecy surrounding dangerous goods transported by rail in the wake of the Lac Megantic, Que., disaster last summer.
(PAUL CHIASSON / THE CANADIAN PRESS FILE PHOTO)

The city of Windsor is pushing back against railroads that want to only release information on dangerous goods transported through municipalities upon the signing of a strict confidentiality agreement that, the city argues, gives companies too much discretion over how the data is used.

Under a Transport Canada directive, rail companies are required to supply municipalities with historical data on the types and amounts of dangerous goods that have travelled through them by rail.

The information, meant to allow for better emergency planning, is only to go to a select few officials after they’ve signed a nondisclosure agreement, which stipulates they will only use the data for emergency planning, share it with those who “need to know,” and keep the information confidential and ensure those they’ve shared it with do, too, “to the maximum extent permitted by law.”

Windsor’s fire chief, solicitors and council took issue with a clause of the nondisclosure statement that essentially removes the city’s ability to argue if a company seeks a court injunction to stop officials from sharing the information.

“Any municipality that’s already signed has given up their right to argue against an injunction to stop them from releasing the information,” said fire chief Bruce Montone. “Why would I give up my right to at least put that argument forward? Doesn’t seem reasonable.”

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A June report to council notes the template agreement, developed by federal industry group the Railway Association of Canada, does not define what constitutes emergency planning.

“Therefore, what the City may consider to be appropriate and reasonable with respect to dissemination of information to meet its own emergency planning obligations may cause objection by the railway and may ultimately result in a court order,” it reads. “Final discretion with respect to what would constitute an inappropriate disclosure of information would rest with the railway and the City would be bound by this.”

Canada’s two largest freight carriers, Canadian National and Canadian Pacific, say they’ve supplied information on dangerous goods to municipalities upon request for years. But railroads have long refused to release information publicly about the dangerous goods trundling through Canadian communities, arguing disclosure would pose a security threat and hurt commercial interests.

Montone, whose previous post was as deputy chief in Ottawa, is the designated contact to receive information from Canadian National, Canadian Pacific and local company Essex Terminal Railway.

He said the city requested the removal of the injunctive relief clause before signing. The railroads refused, arguing the agreement was developed in consultation with the Federation of Canadian Municipalities and the Canadian Association of Fire Chiefs.

“(Those organizations) can’t agree to something on my behalf. They have no legal authority to bargain anything on behalf of the city of Windsor,” said Montone.

City council voted unanimously in favour of authorizing the chief to sign the confidentiality agreement only if the injunctive relief clause is removed.

Councillor Jo-Anne Gignac, who chairs the city’s rail issues committee, said the wording of the agreement is a concern.

“In terms of making sure the head of our emergency response team is able to disseminate information that he thinks is important — this boggles my mind, quite frankly,” said Gignac.

Councillor Irek Kusmierczyk said the agreement allows rail companies to arbitrarily determine how the information is used.

“I felt that it hog-ties our fire chief, it ties his hands,” said Kusmierczyk. “Our responsibility is not to the rail companies, it’s to the residents of the city.”

The city’s legal department drew up a new document, identical to the template minus that clause. Montone signed it and they sent it back to the railroad companies on July 2. So far, there’s been no response.

CN spokesperson Mark Hallman said the clause is consistent with Transport Canada’s order and to release the information without a nondisclosure agreement would conflict with regulation.

He said 344 emergency planning officials have signed the standard agreement; three have refused, citing concerns that other laws, such as freedom of information legislation, might compel them to release it. CN’s view is that municipalities wouldn’t be in violation of that legislation if they sign the agreement.

Toronto has signed the agreement with both CN and CP, said spokesperson Wynna Brown.

“An applicant would still have to satisfy a court that there was a basis upon which to actually grant an injunction,” she wrote in an email, also noting that the agreement recognizes disclosure for the purpose of emergency planning or response, “which would, in our view, include any necessary training.”

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